Case 1:18-cv-10832-IT Document 4 Filed 03/25/25 Page 1 of 14
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`UNITED STATES OF AMERICA
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`Criminal Action No. 1:13-cr-10266-IT
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`v.
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`MICHAEL J. GALATIS,
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`Petitioner.
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`TALWANI, D.J.
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`MEMORANDUM & ORDER
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`March 25, 2025
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`On December 3, 2014, Petitioner Michael J. Galatis was convicted following a 15-day
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`jury trial of conspiracy to commit health care fraud pursuant to 18 U.S.C. § 1349, ten counts of
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`health care fraud pursuant to 18 U.S.C. §§ 1347 and 2, and seven counts of money laundering
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`pursuant to 18 U.S.C. §§ 1957. See Jury Verdict [Doc. No. 186]. Petitioner was sentenced to a
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`term of imprisonment of 92 months, three years of supervised release, an $1,800 special
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`assessment, a $50,000 fine, and $7,000,000 of restitution. See Judgment [Doc. No. 226]. Pending
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`before the court is Petitioner Michael J. Galatis’s Motion to Vacate [Doc. No. 397] pursuant to
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`28 U.S.C. § 2255. For the reasons specified herein, Petitioner’s motion is DENIED.
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`I.
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`Background
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`A. The Indictment
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`The Indictment [Doc. No. 3] charged Petitioner and co-defendant Janice Troisi with one
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`count of conspiracy to commit health care fraud and eleven counts of health care fraud,1 and also
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`charged Petitioner alone with seven counts of money laundering.
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` 1
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` One count for health care fraud was later dismissed based on a motion from the government.
`See Order [Doc. No. 164].
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`Case 1:18-cv-10832-IT Document 4 Filed 03/25/25 Page 2 of 14
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`As alleged in the Indictment [Doc. No. 3], Petitioner was the owner and operator of MJG
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`Management, d/b/a At Home VNA (“AHVNA”), a home health agency that purported to provide
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`medical services to individuals in need of home health care. See Indictment ¶¶ 1, 3 [Doc. No. 3].
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`The Indictment alleged that from at least January 1, 2006, through at least October 2, 2012,
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`Petitioner and Troisi devised a scheme and artifice to defraud Medicare by causing the
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`submission to Medicare of false and fraudulent claims for home health and related services. See
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`id. ¶ 20.
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`The Indictment alleged that Defendants and their co-conspirators caused the submission
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`of more than $27 million of dollars in false and fraudulent claims to Medicare. See id. ¶ 33. The
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`Indictment alleged, inter alia, that Defendants manipulated reports by training AHVNA nurses to
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`complete the forms in a manner that made it appear as though patients were homebound (as
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`required for reimbursement) when they were not. See id. ¶ 26. Defendants recruited a physician,
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`AHVNA’s Medical Director Spencer Wilking, M.D., who attended weekly company meetings at
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`which he signed certifications for patients he had never met. See id. ¶ 28.2
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`The Indictment further alleged that Petitioner, but not Troisi, committed several
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`violations of the money laundering statute, 18 U.S.C. §§ 1957 and 2, with the amount of money
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`laundered totaling $699,329.74. See id. ¶ 42.
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` 2
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` Dr. Wilking pleaded guilty on February 25, 2014, to one count of health care fraud in violation
`of 18 U.S.C. § 1347. See Plea Agreement, United States v. Spencer Wilking, 13-cr-10333-DPW
`[Doc. No. 13]. Based on Wilking’s substantial assistance and role as a key witness in the
`government’s prosecution of Petitioner and Troisi, the government eventually recommended a
`sentence of 15 months of incarceration, 24 months of supervised release, a $7,500 fine, asset
`forfeiture of $42,000, and restitution in the amount of $29,775.86. See Gov’t Sentencing Mem.,
`United States v. Spencer Wilking, 13-cr-10333-DPW [Doc. No. 41].
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`2
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`Case 1:18-cv-10832-IT Document 4 Filed 03/25/25 Page 3 of 14
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`B. The Trial
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`Attorney Alexander J. Repasky was Petitioner’s lead attorney at trial.3 In advance of trial,
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`Attorney Repasky filed motions in limine [Doc. Nos. 90, 91], proposed jury instructions [Doc.
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`No. 88], a trial brief [Doc. No. 89], a notice of intent to present an expert witness [Doc. No.
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`104],4 and an opposition [Doc. No. 114] to a motion in limine from the government.
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`Trial commenced on October 27, 2014.5 In its opening statement, the government
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`informed the jury, inter alia, that it would hear testimony from Dr. Wilking to the effect that he
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`worked at AHVNA, that he signed certifications without seeing patients or reviewing patient
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`files, that not one patient was ever found not to qualify for home health care, that Petitioner
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`repeatedly reassured Dr. Wilking his conduct was legal, and that Dr. Wilking eventually realized
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`the business model was illegal but continued working with AHVNA anyways. See Oct. 28, 2014
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`Tr. 19:24-22:3 [Doc. No. 243].
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` 3
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` Attorney Repasky began representing Petitioner before this court pro hac vice starting October
`9, 2013. In a memorandum filed shortly before trial, after the government raised a potential
`conflict of interest, Attorney Repasky reported that: “[o]ver the course of the past two years,
`counsel and Galatis have developed a strong attorney-client relationship built on Galatis’s trust
`in Repasky, due in large part to Repasky’s hundreds of hours of pretrial preparation. Together,
`they have reviewed hundreds of thousands of documents and prepared to present a defense to the
`charges. Repasky is prepared to represent Galatis at trial on October 27, 2014, has interviewed
`scores of witnesses in preparation for trial and has fully prepared the defense.” Def. Galatis’s
`Mem. ISO his Right to Retain Counsel of Choice at 1-2 [Doc. No. 113]. The court conducted
`two colloquies with Galatis regarding the potential conflict before swearing in the jury, see Elec.
`Clerk’s Notes [Doc. Nos. 120, 142], and Galatis confirmed that he wished to proceed with
`Attorney Repasky representing him.
`4 The government moved to exclude the expert or alternatively for a Daubert Hearing [Doc. No.
`105], and following that hearing, the expert witness was withdrawn. See Elec. Clerk’s Notes
`[Doc. No. 137].
`5 The trial began as a joint trial of Galatis and Troisi. However, on November 30, 2014, the court
`declared a mistrial as to Troisi due to a health condition. See Elec. Clerk’s Notes [Doc. No. 172].
`Troisi was subsequently convicted on all of the fraud charges after a bench trial, and that
`conviction was affirmed on appeal. U.S. v. Troisi, 849 F.3d 490 (1st Cir. 2017).
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`3
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`Case 1:18-cv-10832-IT Document 4 Filed 03/25/25 Page 4 of 14
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`In his opening statement on behalf of Petitioner, Attorney Repasky advanced an
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`overarching theory of the case that the services delivered by AHVNA were legitimate. This
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`theory encompassed claims that the patients who allegedly received unnecessary services
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`suffered from diagnoses that required repeat visits, that Dr. Wilking was not required to see
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`patients until 2011 regulations went into effect and that such regulations authorized visits by
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`nurses and other practitioners who reported to Dr. Wilking, and that patients testifying to
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`receiving unnecessary services either overestimated their own capacity or were fearful in the face
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`of a federal investigation. See id. at 34:16-38:24. Attorney Repasky stated further:
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`Dr. Wilking, you will see, is an elderly physician that has tremendous health
`problems. We expect the evidence to show that you will see from his own
`condition that the threat of this prosecution was probably more than he could take.
`And I expect that at the end of the day you will see that Dr. Wilking, in fact, did
`the right thing. Dr. Wilking is a good man. Dr. Wilking was a volunteer with Mr.
`Galatis many years ago, and you will find that Dr. Wilking is going to tell him the
`truth. At the end of the day, Dr. Wilking will tell the truth in this case, and I
`expect that you will acquit Mr. Galatis . . . in this case.
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`See id. at 38:25-39:11.
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`Mr. Repasky cross-examined all but one of the government’s witnesses at trial.6 On the
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`fourteenth day of trial, Dr. Wilking testified that, beginning in 2007, he signed certifications
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`without looking at them, that he did not meet face to face with patients even after Medicare
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`regulations began requiring such meetings, and that he never refused to sign a certification. See
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`Dec. 1, 2014 Tr. 15:7-13 [Doc. No. 204-1]; id. at 34:9; id. at 38:20-21; id. at 40:8. He stated that,
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` 6
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` The trial court interrupted the government’s direct examination of Maria Dorcena shortly after
`she began and ordered that her further direct testimony would not be permitted on the basis
`offered by the prosecution. See Nov. 13, 2014 Tr. 78:12-16, 88:15-17 [Doc. No. 267]. The court
`subsequently offered Defendants the opportunity to cross-examine her, and neither Attorney
`Repasky nor Ms. Troica’s counsel chose to do so. See Nov. 17, 2014, Tr. 5:5-10, 15:5-14 [Doc.
`No. 248].
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`4
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`once he stopped seeing patients, he became uncomfortable signing the certification forms but
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`chose to ignore his concerns. See id. at 39:11-14. He further testified that he raised his concerns
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`with Petitioner on multiple occasions and that Petitioner sought to reassure him by pointing to a
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`section of the Federal Register that Petitioner claimed gave Dr. Wilking authorization to sign the
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`forms. See id. at 52:1-21.
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`Attorney Repasky engaged in cross examination of Dr. Wilking, during which he, inter
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`alia, probed into Dr. Wilking’s motive to cooperate with the government to reduce his own
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`sentence, see id. at 125:12-15, challenged Dr. Wilking’s view that only nurse practitioners and
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`physicians assistants qualified as non-physician practitioners who could conduct the required
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`face-to-face meetings with patients, see id. at 149:9, and challenged Dr. Wilking’s suggestion
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`that there was a conspiracy between himself and Petitioner, which led Dr. Wilking to state that
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`his agreement with Petitioner was a “tacit understanding” as opposed to an explicit agreement to
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`commit Medicare fraud, see id. at 157:4.
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`Mid-trial, Attorney Repasky filed a motion to exclude the testimony of certain witnesses
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`and for a mistrial. See Mot. to Exclude [Doc. No. 157]. The court excluded those government
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`witnesses and denied the motion to exclude as moot. See Elec. Clerk’s Notes [Doc. No. 173].
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`The government rested and the defense did as well, without calling any witnesses. See Dec. 1,
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`2014 Tr. 172:16 [Doc. No. 204-1].
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`In his closing statement, Attorney Repasky portrayed Dr. Wilking as an uncredible
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`witness due to his cooperation agreement with the government. See Dec. 2, 2014 Tr. 116:25-
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`117:7 [Doc. No. 278]. Attorney Repasky averred that that while Dr. Wilking may have engaged
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`in unlawful conduct, he acted on his own, and Petitioner had no role in the unlawful conduct. See
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`id. at 87:19-23.
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`5
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`On December 3, 2014, the jury convicted Petitioner on all counts. See Jury Verdict [Doc.
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`No. 186].
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`C. Post-trial Motions and Sentencing
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`On December 17, 2014, Attorney Repasky filed on Petitioner’s behalf a motion for a
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`judgment of acquittal and a motion for a new trial on the grounds that, inter alia, the government
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`failed to prove the elements of conspiracy, failed to prove an intent on the part of Petitioner to
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`commit Medicare fraud, and failed to prove that the United States was defrauded by Petitioner.
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`See Mot. for Judgment of Acquittal at 1 [Doc. No. 191]; Mot. for New Trial [Doc. No. 192]. The
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`court denied both of Petitioner’s post-trial motions but sentenced Petitioner to a below guideline
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`sentence. See Elec. Order [Doc. No. 225]; Judgment [Doc. No. 226].7 Petitioner was ordered to
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`surrender for service of sentence on April 3, 2015. See Elec. Clerk’s Notes [Doc. No. 225].
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`D. Notice of Appeal and Motion to Stay the Sentence
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`Petitioner filed a notice of appeal to the First Circuit on March 9, 2015.8 On April 1, 2015
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`(two days before he was due to report to serve his sentence), Petitioner filed a pro se motion
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`seeking a 30-day stay of his sentencing so that he could obtain new counsel for the purposes of
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`filing a motion to stay his sentencing pending the outcome of his appeal. See Emergency Mot. to
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`Stay [Doc. No. 232]. In his motion, Petitioner maintained that Attorney Repasky failed to
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`effectively prepare for trial, failed to effectively cross-examine witnesses, failed to call defense
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` 7
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` Petitioner had a total offense level under the United States Sentencing Commission’s
`Guidelines of 35 and a criminal history category of I, resulting in an advisory guideline range of
`168 to 210 months. See Statement of Reasons [Doc. No. 366].
`8 Petitioner appealed the conviction, but not the sentence imposed. See United States v. Galatis,
`849 F.3d 455, 457 (1st Cir. 2017) (“There is no appeal from the sentence.”).
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`6
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`witnesses, and committed other alleged errors that potentially constituted ineffective assistance
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`of counsel. See id. at 1-2.
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`On April 2, the court denied the motion for a temporary stay, finding that Petitioner had
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`“belatedly filed this motion at the last minute to secure a delay on an improper basis” and that
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`“[t]he issues of ineffective assistance of counsel identified appear to involve recent contrivances
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`seeking to raise strategic judgments regarding which the defendant has been aware for some time
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`and as to which he may properly be deemed to have acquiesced,” and further stating that
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`Petitioner could raise any issues of ineffective assistance in a 2255 petition. See Elec. Order
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`[Doc. No. 238].
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`On February 24, 2017, the First Circuit unanimously affirmed Petitioner’s conviction,
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`rejecting Petitioner’s arguments that the district court committed reversible error by: (1) allowing
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`Dr. Wilking to testify that he had pled guilty to health care fraud arising from the same scheme
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`without sua sponte giving a limiting instruction; (2) permitting certain lay and expert witness
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`testimony; and (3) denying Petitioner’s jury instruction as to the meaning of a particular
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`certification requirement in the relevant Medicare provisions. See Galatis, 849 F.3d at 457.9
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`On April 29, 2018, Petitioner filed the pending Motion to Vacate [Doc. No. 397]. This
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`case was reassigned on December 31, 2024.
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`II.
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`Discussion
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`A. Standing
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`A petition filed pursuant to 28 U.S.C. § 2255 while an individual is in custody must
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`present “a live case or controversy” when considered by the court, see Spencer v. Kemna, 523
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` Petitioner was represented on appeal by new counsel, Robert L. Sheketoff.
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`7
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` 9
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`U.S. 1, 7 (1998), and thus becomes moot where a petitioner who is released from custody cannot
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`show “some sufficient collateral consequence of the underlying proceeding,” Leitao v. Reno, 311
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`F.3d 453, 455 (1st Cir. 2002). Here, Petitioner filed his Petition while incarcerated but was
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`released while the Petition was pending and, as of November 18, 2024, is no longer on
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`supervised release. See Order [Doc. No. 439]. However, Petitioner still owes restitution. See
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`Request from Probation [Doc. No. 437] (Petitioner owed $6,248,572.66 in restitution as of
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`August 7, 2024). Accordingly, the court finds that Petitioner’s 2255 petition is not moot, where
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`Petitioner has a substantial financial interest in the vacating of his conviction.
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`B. Ineffective Assistance of Counsel and Prejudice
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`“Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-
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`bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012). “When evaluating a Sixth
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`Amendment claim of ineffective assistance of counsel brought under 28 U.S.C. § 2255, [courts]
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`conduct a two-pronged inquiry, asking whether (1) counsel provided objectively deficient
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`representation (the performance prong), and, if so, (2) is there ‘a reasonable probability that, but
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`for counsel’s unprofessional errors, the result of the proceeding would have been different’ (the
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`prejudice prong)?” Torres-Estrada v. United States, 122 F.4th 483, 494 (2024) (quoting
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`Strickland v. Washington, 466 U.S. 668, 688 (1984)). “The petitioner bears a heavy burden on
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`each prong.” Id. (quoting Casey v. United States, 100 F.4th 34, 42 (1st Cir. 2024)).
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`Petitioner argues that his counsel was ineffective because counsel: (1) told the jury in the
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`opening statement that a cooperating witness for the government would be truthful in his
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`testimony; (2) assured Petitioner that counsel “would put on a full defense and that [Petitioner]
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`had a very good case,” when his counsel “had no consistent theory of defense” and “put on no
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`8
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`defense case of any kind”; and (3) proceeded to trial with the intent to “try the case for appeal.”
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`See Mem. ISO Mot. to Vacate at 1-2 [Doc. No. 410].
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`Attorney performance is deficient “[o]nly when counsel’s strategy was ‘so patently
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`unreasonable that no competent attorney would have made it.’” Torres-Estrada, 122 F.4th at 494
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`(quoting Watson v. United States, 37 F.4th 22, 28 (1st Cir. 2022)). Perhaps recognizing that the
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`issues raised by Petitioner do not appear to meet this standard, Petitioner suggests an evidentiary
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`hearing is necessary to understand the circumstances that prompted trial counsel to proceed as he
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`did. See Mem. ISO Mot. to Vacate at 1-2 [Doc. No. 410]. But even assuming that an evidentiary
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`hearing would reveal that counsel’s opening statements and trial decisions were so patently
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`unreasonable that no competent attorney would have made them, Petitioner cannot establish
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`prejudice. Counsel mitigated any prejudice from the opening statement by subsequently cross-
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`examining Dr. Wilking, including as to his motive for testifying in exchange for a lighter
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`recommended sentence, and attacking his credibility in closing arguments. Counsel also cross-
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`examined each of the government’s witnesses, except the one witness whose direct examination
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`was cut short. By Petitioner’s own account, “[t]he government had a very strong case.” Id. at 3.
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`As the First Circuit noted in finding that Galatis had not demonstrated that the lack of a limiting
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`instruction made any difference to the outcome of the trial:
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`The government presented overwhelming evidence against him. This evidence
`included testimony from AHVNA patients, AHVNA nurses, and primary care
`providers that showed that AHVNA plainly had not met the requirements for
`home health services under Medicare and that Galatis and Troisi had falsified the
`necessary forms to make it appear as if the patients were eligible. The jury
`reviewed OASIS Forms and Form 485s, submitted by AHVNA to HHS, that
`made assertions flatly contradicted by the testimony of AHVNA patients, their
`nurses, and their primary care providers. Dr. Wilking testified that he had
`routinely certified at the weekly staff meetings that patients were eligible under
`Medicare, even though he had not actually met with or examined the patients, and
`that Galatis had known this.
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`Galatis, 849 F.3d at 460-61.
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`The court similarly finds here that Petitioner has not demonstrated that the asserted errors
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`in counsel’s opening statement or other trial decisions would have affected the outcome of the
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`trial. Accordingly, Petitioner has not shown prejudice from counsel’s trial conduct.
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`Petitioner also asserts that counsel was deficient in telling Petitioner he “had a very good
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`case” and maintains that “[a]bsent [counsel’s] assurances and if the revelation about trying the
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`case for appeal had been made before trial, [Petitioner] would have considered other alternatives
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`to going to trial with his trial counsel.” See Mem. ISO Mot. to Vacate at 1 [Doc. No. 410].
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`Petitioner notes that “[d]uring plea negotiations defendants are ‘entitled to the effective
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`assistance of competent counsel.’" Id. at 2 (quoting McMann v. Richardson, 397 U.S. 759, 771
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`(1970)). Here, even assuming counsel’s performance in assuring Petitioner he “had a very good
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`case” was deficient—and this court emphasizes that it is making no such finding here—,
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`Petitioner again would not prevail because Petitioner has not satisfied the Strickland prejudice
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`prong.
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`In the context of plea negotiations, the Strickland prejudice prong requires defendants to
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`prove that “the outcome of the plea process would have been different with competent advice.”
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`Lafler, 566 U.S. at 163. In Lafler, the defendant received inaccurate advice from his counsel as
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`to an element of the crime charged—advice that both parties agreed constituted ineffective
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`assistance—, which led defendant to decline a plea offer and proceed to trial, at which defendant
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`was convicted and after which defendant received a sentence that was more than three times
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`longer than the minimum offered in the rejected plea bargain. See id. at 160-61. The Court
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`explained that where a plea is actually offered but rejected, a defendant must show that there is a
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`reasonable probability that: (1) the defendant “would have accepted the plea”; (2) “the
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`prosecution would not have withdrawn it in light of intervening circumstances”; (3) “the court
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`Case 1:18-cv-10832-IT Document 4 Filed 03/25/25 Page 11 of 14
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`would have accepted its terms”; and (4) “the conviction or sentence, or both, under the offer’s
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`terms would have been less severe than under the judgment and sentence that in fact were
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`imposed.” Id. at 164. Applying that framework, the Court held that the defendant had satisfied
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`Strickland’s two-part test. Id. at 174.10
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`The government urges the court to find that a petitioner cannot show prejudice where, as
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`here, the government never offered a plea deal. See Gov’t Opp. to Mot. to Vacate at 7-8 [Doc.
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`No. 418]. There is a circuit split as to this issue, with some circuits requiring defendants to meet
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`a threshold requirement that a defendant show proof of a plea offer and others allowing a
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`showing to be made without such proof. See Davis v. United States, 143 S. Ct. 647 (2023)
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`(Jackson, J., dissenting from the denial of certiorari). To this court’s knowledge, the First Circuit
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`has not weighed in.
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`But even if a petitioner may in specific circumstances show prejudice even where no plea
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`was offered, such circumstances are not present here. In her dissent from the Supreme Court’s
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`denial of certiorari in Davis, Justice Jackson explained why she believed the defendant in that
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`case, whose attorney failed to initiate plea negotiations with the government, likely would have
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`prevailed as to the prejudice prong had the Eleventh Circuit not imposed a threshold requirement
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`of showing a plea offer:
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`Davis’s allegations established that a favorable plea agreement was a strong
`possibility, even though no offer actually materialized, because each of Davis’s
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`10 In another case decided on the same day as Lafler, Missouri v. Frye, 566 U.S. 134 (2012),
`defense counsel did not inform the defendant of a plea offer and, after the offer lapsed, defendant
`pleaded guilty on more severe terms. See 566 U.S. at 138-39. The Court held that defendant had
`satisfied the first Strickland prong but remanded for consideration of the second prong, as the
`analysis of whether the prosecution would have adhered to, and the trial court would have
`accepted, the earlier plea offer was complicated by the fact that defendant was arrested for an
`additional offense by the time of the scheduled preliminary hearing and guilty plea. See id. at
`150-51.
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`five codefendants had lawyers who negotiated favorable plea agreements with
`respect to the same series of armed robberies. And while Davis (who was 18 or 19
`years old at the time the crimes were committed) received a sentence of
`approximately 160 years of imprisonment after his attorney took him to trial, all
`of Davis’s codefendants received sentences of less than 40 years of imprisonment
`due to plea agreements that enabled the District Court to impose a sentence below
`the mandatory minimum. The District Court’s statements at sentencing were also
`noteworthy: The judge specifically asserted that, while he thought the appropriate
`sentence for Davis was 40 years, he was bound by the consecutive mandatory
`minimums.
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`See id. at 648.
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`Here, in contrast, Petitioner’s co-defendant, Janice Troisi, also proceeded to trial, and
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`Petitioner has not alleged that she received a plea offer. Dr. Wilking pleaded guilty and
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`cooperated with the government; because of his cooperation, the government recommended a
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`sentence that included 15 months of incarceration and restitution in the amount of $29,775.86.
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`See Gov’t Sentencing Mem., United States v. Spencer Wilking, 13-cr-10333-DPW [Doc. No.
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`41]. But as he testified at Petitioner’s trial, his role in the conduct alleged here was largely to sign
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`certifications for patients he did not see—quite a different role from that of Petitioner, who
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`owned and managed AHVNA, which orchestrated the entire scheme. Accordingly, Dr. Wilking’s
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`ability to enter a plea agreement and his receipt of a lighter sentence due to his cooperation is of
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`little utility in determining that a favorable plea agreement was a strong possibility.
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`Beyond these shortcomings, Petitioner points to no other facts that would make likely
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`that he “would have accepted the plea” if one had been offered. Unlike the defendant in Davis,
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`Petitioner was not facing a statutory mandatory minimum. And Petitioner’s prejudice showing is
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`not helped by his decision to maintain his innocence throughout trial as well as during
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`sentencing, after the jury found him guilty. See Galatis Sentencing Mem. at 5 [Doc. No. 222]
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`(“There was no plea agreement in the case since the defendant maintains his innocence.”). Even
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`in his pending petition before this court, Petitioner does not admit that he is guilty of the crimes
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`Case 1:18-cv-10832-IT Document 4 Filed 03/25/25 Page 13 of 14
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`for which he was convicted but instead suggests that he would have made different strategic
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`decisions had he been apprised of his chances at trial. Even if maintaining one’s innocence is not
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`dispositive, see Baker v. United States, 109 F.4th 187, 202 (3d Cir. 2024) (rejecting the idea that
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`an insistence on innocence is dispositive as to a willingness to accept a plea offer and explaining
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`why, in some circumstances, such insistence is only weakly probative), Petitioner’s repeated
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`unwillingness to admit guilt does nothing to strengthen his entirely speculative argument that he
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`was prejudiced by his counsel’s reassurances that he had a good case.11
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`Petitioner maintains that “[e]ven if there was no plea bargain offered, a guilty plea would
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`have resulted in a lower guideline.” Mem. ISO Mot. to Vacate at 3 [Doc. No. 410]. A guilty plea
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`could have reduced his offense level by two or three levels for acceptance of responsibility, see
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`U.S.S.G. § 3E1.1, to an offense level of 32 and a guideline sentencing range of 121 to 151
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`months, see 2015 U.S. Sentencing Guidelines Sentencing Table,
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`https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2015/Sentencing_Table.pdf (last
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`visited March 24, 2025); Statement of Reasons [Doc. No. 366]. Petitioner’s sentence of 92
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`months still falls well below that guideline range. Regardless, Petitioner has not alleged facts to
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`render his suggestion that he would have entered a guilty plea with different counsel anything
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`more than speculation.
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`11 See United States v. Guerrero, 2015 WL 6958071, at *3 (D. Mass. Nov. 9, 2015) (“The
`cursory suggestion in [petitioner’s] brief that he would have opted for a plea is belied by his
`conduct throughout the proceedings in his case.”); Sanders v. United States, 341 F.3d 720, 723
`(8th Cir. 2003) (“A defendant who maintains his innocence at all the stages of his criminal
`prosecution and shows no indication that he would be willing to admit his guilt undermines his
`later § 2255 claim that he would have pleaded guilty if only he had received better advice from
`his lawyer.”); Lafler, 566 U.S. at 171-72 (explaining that in determining a remedy where counsel
`is ineffective during plea negotiations, the court “may take account of a defendant’s earlier
`expressed willingness, or unwillingness, to accept responsibility for his or her actions.”).
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`13
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`Case 1:18-cv-10832-IT Document 4 Filed 03/25/25 Page 14 of 14
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`Petitioner seeks an evidentiary hearing to address his counsel’s reasons for allegedly
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`assuring Petitioner he had a good case and proceeding to trial only to try the case for appeal, and
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`for telling the jury in his opening statement that Dr. Wilking would testify truthfully. See Mem.
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`ISO Mot. to Vacate at 1-2 [Doc. No. 410]; United States v. Torres-Rosario, 447 F.3d 61, 64 (1st
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`Cir. 2006) (“Sixth Amendment attacks on counsel . . . require findings as to what happened and,
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`as important, why counsel acted as he did[.]”). But “[e]ven if a hearing is requested, a district
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`court properly may forgo it when . . . the movant’s allegations, even if true, do not entitle him to
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`relief[.]” David v. United States, 134 F.3d 470, 477-78 (1st Cir. 1998). That is the case here:
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`even if Petitioner’s counsel committed the purported errors alleged by Petitioner, Petitioner
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`would not be entitled to relief due to a failure to show prejudice. Therefore, Petitioner’s request
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`for a hearing is denied.
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`III. Conclusion
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`For the foregoing reasons, Petitioner’s Motion to Vacate [Doc. No. 397] is DENIED.
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`IT IS SO ORDERED.
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`March 25, 2025
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`/s/ Indira Talwani
`United States District Judge
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